Cooper v. Public Finance Corp., 54514
| Decision Date | 23 January 1978 |
| Docket Number | No. 54514,No. 2,54514,2 |
| Citation | 241 S.E.2d 839,144 Ga.App. 572 |
| Court | Georgia Court of Appeals |
| Parties | W. B. COOPER, Jr., et al. v. PUBLIC FINANCE CORPORATION |
Clein & Heimanson, Neil L. Heimanson, Atlanta, for appellants.
Arnall, Golden & Gregory, Allen I. Hirsch, Charles L. Gregory, Atlanta, for appellee.
Charles M. Baird, Steven Gottlieb, Atlanta, for amicus curiae.
Appeal was taken from the dismissal of the plaintiffs complaint seeking to set aside a judgment rendered for the defendant. The Supreme Court in transferring the case to this court held: "This suit to set aside the judgment for a nonamendable defect appearing on the face of the record or pleadings, under Hinsley v. Liberty Loan Corp., 133 Ga.App. 344, 211 S.E.2d 3 (1974), and cases cited therein, should be transferred to the Court of Appeals." Held :
By transferring the case here the Supreme Court found no equity in the appeal and has further expressly limited the action as one to set aside a judgment for nonamendable defects appearing on the face of the record of pleadings. See CPA § 60(d) ().
Under CPA § 60(a) (): The methods by which a judgment may be directly attacked are: 1) by motion for new trial; 2) motion to set aside, or 3) complaint in equity. Except for a judgment attacked by a complaint in equity, which may be brought in any superior court of appropriate jurisdiction, a judgment may be attacked by motion only in the court of rendition. CPA § 60(b).
A further stricture upon methods of attacking judgments is found in CPA § 60(f) which provides that, except where: "A judgment (is) void because of lack of jurisdiction of the person or subject matter . . . In all other instances, all motions, complaints or other proceedings to set aside or attack judgments shall be brought within three years from entry of the judgment complained of."
Originally, we construed the Supreme Court order to mean that this action must be considered as an attack by motion to set aside under CPA § 60(d). The original judgment which is sought to be set aside was obtained in the State Court of DeKalb County. This action was brought in DeKalb Superior Court. Since the judgment may be attacked by a motion to set aside only in the court of rendition, it would appear that the instant complaint was subject to the defendant's motion to dismiss on the basis of lack of jurisdiction. This would especially appear true in view of the apparent difference in CPA § 60(a) and CPA § 60(d). For, if both methods of attack might be utilized as to the same judgment there would appear to be no reason for incorporating a motion to set aside under CPA § 60(d) since a collateral attack would always be appropriate.
In Wasden v. Rusco Industries, Inc., 233 Ga. 439, 443(2), 211 S.E.2d 733, the Georgia Supreme Court held that the proper test to be used in determining whether a judgment was void on its face is whether there was some nonamendable defect upon the face of the record or the pleadings, "which is not cured by verdict or judgment and the pleadings affirmatively show that no legal claim in fact existed." P. 444, 211 S.E.2d p. 736. Under that decision, if a nonamendable defect appears on the face of the record or pleadings, then the judgment is void and may be collaterally attacked by any person "when it becomes material to the interests of the parties to consider it." P. 444, 211 S.E.2d p. 737.
We are bound by the Supreme Court's holding and the authorities it cites. Therefore, where there is a nonamendable defect appearing upon the face of the record or pleadings the judgment is void and the restrictions placed upon a direct attack are eliminated. Thus, even though the Supreme Court by transferring the case to us indicated that this action is in the nature of a motion to set aside, we must treat it as a collateral attack on a judgment void on its face and test it by the applicable authority.
2. From the record of the prior case, we find...
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Cooper v. Public Finance Corp.
...In the first action plaintiffs appealed from a dismissal of their complaint. This court reversed and remanded. See Cooper v. Public Fin. Corp., 144 Ga.App. 572, 241 S.E.2d 839. In this action defendants' answers contained numerous defenses, including prior pending action, failure to state a......
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Public Finance Corp. v. Cooper
...its finding that the Coopers' payments were voluntary and thus not recoverable under Code § 20-1007. See Cooper v. Public Fin. Corp., 144 Ga.App. 572, 574, 241 S.E.2d 839 (1978). In addition, we ruled in Cooper v. Public Fin. Corp., 146 Ga.App. 250(2), 246 S.E.2d 684 (1978), a suit in which......
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Ricks v. Liberty Loan Corp., 55510
...S.E.2d 204. The judgment based on that note, which was necessarily in the record, was, therefore, void on its face. Cooper v. Public Fin. Co., 144 Ga.App. 572, 241 S.E.2d 839. 2. "(A) judgment void on its face may be attacked in any court by any person when it becomes material to the intere......
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Southern Discount Co. of Georgia v. Ector
...from its inception. See Household Finance Corp. v. Raven, 136 Ga.App. 424, 425(1), 221 S.E.2d 488 and cits.; Cooper v. Public Finance Corp., 144 Ga.App. 572, 573, 241 S.E.2d 839. For a comparison between "a void judgment and a voidable judgment" see Wasden v. Rusco Industries, 233 Ga. 439, ......